Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Election/Restrictions
Applicant’s election without traverse of Group II, claims 13-24 in the reply filed on 10/13/2025 is acknowledged.
Claims 1-12 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/13/2025.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 13 and 15-23 are rejected under 35 U.S.C. 103 as being unpatentable over Osborne et al. (US Patent Pub. 2007/0196296) in view of Vilantonio et al. (Appl. Phys. Rev 8, 23 June 2021, pp. 1-15).
Osborne et al. disclose a personal care composition comprising one or more active components ([0007). Osborne et al. disclose the composition comprises a retinoid, such as retinol and amino acid, such as the pentapeptide lys-thr-thr-lys-ser ([0063]-[0068]). Osborne et al. disclose the personal care composition can be in the form of an oil-in-water emulsion ([0145]). Osborne et al. disclose the composition comprises active components such as sodium PEG-7 olive oil carboxylate ([0045]). Osborne et al. disclose the composition comprises a metal ion source such as zinc oxide ([0133]).
Osborne et al. differs from the instant claims insofar as they do not disclose a jammed oil-in-water emulsion.
Vitantoni et al. disclose jammed emulsions comprising continuous and discontinuous phases used for personal care that have higher stability, are made to have minimal environmental impacts and are inexpensive to form (Introduction and Outlook).
It would have been obvious before the effective filing date of the claimed invention to have formed the emulsions of Osbourne et al. into jammed oil-in-water emulsions motivated by the desire to have higher stability, are made to have minimal environmental impacts and are inexpensive to form as taught by Vilantoni.
Claim(s) 14 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Osborne et al. (US Patent Pub. 2007/0196296) in view of Vilantonio et al. (Appl. Phys. Rev 8, 23 June 2021, pp. 1-15) as applied to claims 13 and 15-23 above, further in view of Sarkar et al. (US Patent Pub. 20130171080).
Osborne in view of Vilantonio is discussed above and differs from the instant claims insofar as they do not disclose mineral oil, petrolatum, coconut oil, or combinations thereof or an emulsifier comprising polysorbate, an alkyl sulfate, or combinations thereof.
Sarkar et al. disclose personal care compositions comprising at least one personal care component (Abstract). Sarkar et al. disclose the composition is an emulsion having a continuous aqueous phase; wherein the composition comprises polysorbate and mineral oil ([0047]).
It is prima facie obviousness to select a known material based on its suitability for its intended use. Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function. MPEP 2144.07. Therefore, it would have been obvious to have used polysorbate and mineral oil in the emulsion of Osborne in view of Vilantonio since they are known components of emulsion formulations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NANNETTE HOLLOMAN whose telephone number is (571)270-5231. The examiner can normally be reached Monday-Friday 9am-6pm.
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/NANNETTE HOLLOMAN/Primary Examiner, Art Unit 1612
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